Supreme Court to rule soon on telecom data privacy

The Supreme Court of Canada is set to rule on whether the sharing of customers’ telcom data with authorities, without a warrant, is constitutional. (THE CANADIAN PRESS / File)

Canada’s top court will soon rule on whether warrantless sharing of telecom customer data with police is legal.

It has become commonplace for police to obtain identifying information about Canadians from Internet service providers. But some lawyers argue this is a perversion of a law that was supposed to beef up privacy.

Now the Supreme Court of Canada is set to rule on whether the practice is constitutional.

“This is the equivalent of the state standing over your shoulder and essentially watching what you’re doing,” said Ronald Piche of the Saskatchewan law firm Piche & Company.

“Now, they don’t know who you are at the time, but they’re just one letter away.”

Piche took on the case of Matthew David Spencer, a Saskatchewan man who was charged with possessing child pornography at age 19. Police laid charges after Spencer’s Internet service provider, Shaw, turned over his identity voluntarily. Spencer was convicted but appealed his case up to the Supreme Court.

Before 2001, police had to prove reasonable grounds that a crime was committed and obtain a warrant before accessing private information. But that year Parliament passed the Personal Information Protection and Electronic Documents Act. It was billed as safeguarding Canadians’ digital privacy.

The act opened the door for telecoms to voluntarily hand over customer data police if it is “requested for the purpose of enforcing any law in Canada, a province or a foreign jurisdiction.”

This opened the door for warrantless access to personal data, said Richard Fedorowicz of the Toronto law firm Robinson, Chartier, Taraniuk, Owoh & Fedorowicz.

“I can tell you there’s nothing stopping police from pursuing search warrants. The troubling thing is it almost became just a matter of convenience. It’s just easier to send this form email,” said Fedorowicz, who has litigated similar cases.

Here is how it works.

According to four lawyers interviewed, police witness behaviour online they suspect to be illegal. They do not know who is behind it, but they trace the Internet protocol address to a Canadian telecom. They then go to the company and get the name, address and phone number tied to that IP address. There is no warrant involved and the disclosure is not revealed to the individual.

Most telecoms have reworded their customer contracts in recent years to allow for this disclosure, said Fedorowicz.

Lower courts have consistently ruled that “tombstone data” such as names, addresses and phone numbers do not carry an expectation of privacy, even if they are tied to someone’s online activity.

But if the Supreme Court sides with Spencer, all of that will change. Spencer’s legal team argues the way police have been using the act is an unconstitutional breach of privacy.

“The purpose of PIPEDA is not to enhance police powers but rather to protect privacy rights,” says the legal argument written by Aaron Fox and Darren Kraushaar, lawyers with McDougall Gauley LLP.

They argue that police should be able to trace an IP address, but only with the sign-off of a judge. The lawyers say the police are using the “power to collect intimate and revealing personal information without any judicial oversight.”

The court is considering the Spencer case now and and could render its decision at any time.

Law enforcement agencies requested data from nine Internet, telecommunications and web companies about 1.2 million times in 2011. It is not known how many times the companies complied with police requests.

Police argue they need their powers strengthened to catch up with modern criminals.

Speaking at a House of Commons committee studying Bill C-13, the Conservatives’ so-called cyberbullying bill, members of the RCMP, Ontario Provincial Police and Halifax Regional Police said they need access to data quickly in order to address crimes in the digital world.

“Under the current legislation police can only access the very basics of subscriber information,” said Supt. Carson Pardy, the OPP’s director of eastern region operations.

“The outcome (of C-13) will be that police can quickly and consistently gain access to information that makes a difference to our effectiveness in investigating and preventing criminal activity and victimization.”

Both the Conservatives and police agencies have stressed that C-13 does not explicitly expand warrantless access to Canadians’ personal data for authorities. But the bill does remove a disincentive for telecoms to co-operate. The legislation includes a clause that shields from prosecution anyone who voluntarily hands over information to authorities.

The Canadian Civil Liberties Association is also challenging warrantless access through the Personal Information Protection and Electronic Documents Act in Ontario Superior Court. A court date has not been set.